The Assault on International Law

Jens David Ohlin

The first book to rebut the anti-international law scholarship of the 'new realists'

The Assault on International Law

Jens David Ohlin

Description

International law presents a conceptual riddle. Why comply with it when there is no world government to enforce it? The United States has long history of skepticism towards international law, but 9/11 ushered in a particularly virulent phase of American exceptionalism. Torture became official government policy, President Bush denied that the Geneva Conventions applied to the war against al-Qaeda, and the US drifted away from international institutions like the International Criminal Court and the United Nations.

Although American politicians and their legal advisors are often the public face of this attack, the root of this movement is a coordinated and deliberate attack by law professors hostile to its philosophical foundations, including Eric Posner, Jack Goldsmith, Adrian Vermeule, and John Yoo. In a series of influential writings they have claimed that since states are motivated primarily by self-interest, compliance with international law is nothing more than high-minded talk. Theses abstract arguments then provide a foundation for dangerous legal conclusions: that international law is largely irrelevant to determining how and when terrorists can be captured or killed; that the US President alone should be directing the War on Terror without significant input from Congress or the judiciary; that US courts should not hear lawsuits alleging violations of international law; and that the US should block any international criminal court with jurisdiction over Americans. Put together, these polemical accounts had an enormous impact on how politicians conduct foreign policy and how judges decide cases - ultimately triggering America's pernicious withdrawal from international cooperation.

In The Assault on International Law, Jens Ohlin exposes the mistaken assumptions of these 'New Realists,' in particular their impoverished utilization of rational choice theory. In contrast, he provides an alternate vision of international law based on a truly innovative theory of human rationality. According to Ohlin, rationality requires that agents follow through on their plans even when faced with opportunities for defection. Seen in this light, international law is the product of nation-states cooperating to escape a brutish State of Nature—a result that is not only legally binding but also in each state's self-interest.

The Assault on International Law

Jens David Ohlin

Table of Contents

PROLOGUE: DRAMATIS PERSONAE 1. The Office of Legal Counsel 2. The Emergence of the New Realists 3. Conclusion CHAPTER ONE: GAMING THE FEDERAL COURTS 1. The Erie Doctrine 2.0 2. The Filartiga Era: Enforcing International Law at Home 3. Filartiga's Demise, Parochialism's Rise 4. The New Realists go to Washington 5. International Law as Interpretive Guidance 6. Conclusion CHAPTER TWO: PRESIDENTS AND LEVIATHANS 1. Public Opinion and Law 2. Presidential Power: The New Realist's Normative Argument 3. Democratic Decision-making versus Schmittology 4. Executive Action During Emergencies 5. Why Schmittian Administrative Law is Not Inevitable 6. Conclusion CHAPTER THREE: THE ATTACK: MISUNDERSTANDING RATIONALITY 1. The Game Theory Game 2. The Prisoner's Dilemma and Nash Equilibrium 3. Law and Self-Interest 4. Objections to the Moral Obligation of States CHAPTER FOUR: SOLVING THE PRISONER'S DILEMMA OF INTERNATIONAL LAW 1. The Toxin Puzzle and Taking the Long View 2. The Deterrence Paradox and the Limits of Follow-Through 3. Assurances and Cooperation 4. Why the New Realists Fail to Understand Rationality 5. Rationality and Obligation CHAPTER FIVE: WAR AS COOPERATION 1. War as Cooperation 2. Who can be Targeted? Combatants, Civilians, and CCFers 3. Geographical Constraints on Armed Conflict 4. Co-Applying the Laws of War with Human Rights CHAPTER 6: REENGAGING INTERNATIONAL INSTITUTIONS 1. Global Legalism vs. Rational Choice: A False Dichotomy 2. Does Globalization Need Taming? 3. The United Nations 4. The International Court of Justice 5. The International Criminal Court

Author Information

The Assault on International Law

Jens David Ohlin

Reviews and Awards

"Reading The Assault on International Law provides a dramatic insight into the legal, academic, and ultimately - political battles over the place of international law in US domestic law and the US conceptualization of sovereignty. For those with a particular fondness for international law, it reads like a thriller - a pretty good one, for that matter." - Ralph Janik, Austrian Review of International and European Law

"The Assault on International Law makes an important contribution to the theory of international law and offers a powerful rebuttal of the sceptical views articulated by a number of American scholars in the last 15-20 years." - Guglielmo Verdirame, Netherlands International Law Review

"A cogently argued and provocative thesis: that the devaluing of international law over the past two decades by a few U.S. law professors, rather than an interesting ivory tower exercise, is directly responsible for some of America's darkest deeds since 9/11." - Sean D. Murphy, Member, U.N. International Law Commission, and Patricia Roberts Harris Professor of Law, George Washington University

"The single most important question in international legal theory today is: are states bound by international law? The right wing 'neo-cons' say no. Jens David Ohlin takes their favorite weapon-rational choice theory-and turns it on them, to great effect. Along the way, he shares his views about the colorful personalities who operate behind the scenes and the prestigious law schools that they inhabit. The Assault on International Law is one book that people on both sides of the dispute must read and deal with." - Lea Brilmayer, Howard Holtzmann Professor of International Law, Yale Law School

"Are states capable of functioning as agents? And does their presumptive rationality allow them to make commitments that they can be expected to honor, even when that is not to their immediate advantage? The Assault on International Law documents and challenges a new wave of theory that would put the very possibility of a robust regime of international law in question. The debate about these issues ought to occupy center stage in the theory of international relations, and this book ought to be cast in a leading role." - Philip Pettit, L.S. Rockefeller University Professor of Politics and Human Values, Princeton University, and Distinguished Professor of Philosophy, Australian National University

"International law,' Jens Ohlin writes, 'is under attack in this country.' And so it is. But Ohlin's riposte in The Assault on International Law is learned, forceful, and profoundly convincing. I can only hope this critically important book receives the attention it deserves, both within and without the academy; if it does, international law should have little trouble surviving the worst its American critics can throw at it." - Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London